Section 28 Chapter 152: Willful Misconduct of Employer; Defense; Reimbursement of Insurer; Employment of Minor; Mentally Retarded Persons; Injuries at Sheltered Workshops

Before we discuss the details and protections of Section 28 of Chapter 152 of the Massachusetts General Laws (MGL), it is important to understand the reason we have a workers’ compensation system. A better understanding of the historical backdrop helps with understanding the reasoning behind the legal framework. 

As our Boston workers’ compensation lawyers can explain, at the start of the industrial revolution around the 1850s, workers were employed in factory jobs in numbers and ways that were never possible before. Even before Henry Ford invented the assembly system of production, there were workers at factories working many hours in terrible conditions, and they were being injured or killed on a regular basis.

This was seen not just with factory jobs but also into the next century with workers in the construction fields. With steel-frame concrete construction, and electricity to pump water up to higher levels, buildings were being constructed higher than ever. With the invention of electric pumps, water could be pumped to tanks on the tops of skyscrapers, and allowing for indoor plumbing at any height. However, constructing these building was dangerous work. Not only were many workers injured on the job, but many were also killed. Many considered this acceptable, as the workers were mostly immigrants and had few rights at that time.

Eventually, the workers who were injured on the job or their families would sue the employer for their losses. Employers, afraid of being sued all the time, lobbied for a system to protect them from liability. Similarly, injured workers sought protections to ensure their financial and medical security in the event they were unable to work. As a result, the workers’ compensation system was born. In the 1970s, the workers’ compensation system was established in the Commonwealth of Massachusetts.

As our attorneys know, this system was put in place not only to protect the workers but also to limit the exposure of the employers. Employers worked with workers’ compensation insurance companies, who were really driving this movement behind the scenes, to set up the system and to limit it to lost wage recoupment and coverage medical treatment. This meant injured workers could not collect damages for pain and suffering. Today, this remains true, and an injured worker on workers’ compensation cannot collect pain and suffering from their employer. There are some very limited exceptions to this rule.

The Massachusetts workers’ compensation system is known as an exclusive remedy system. This means that if a worker is eligible to apply for workers’ compensation benefits, he or she cannot file a personal injury lawsuit against his or her employer, fulfilling the hopes of the workers’ compensation law drafters.

In order to provide some benefits and incentives to the employees for the creation of workers’ compensation, the system was set up so that the injured worker does not need to prove the fault of the employer to qualify for benefits. Unlike in civil personal injury lawsuits, in the vast majority of workers’ compensation cases whether your employer was at fault for your Boston workplace injury does not matter. If the worker was an employee within the meaning of the Workers’ Compensation Act, not an independent contractor, and was injured while working he or she is likely eligible to file a workers’ compensation claim. Even if the accident did not happen at the employer’s physical location, the injured worker may still be entitled to benefits if they were acting within the scope of their employment.

While fault doesn’t matter in the vast majority of workers’ compensation cases, it is possible to in very rare circumstances to get additional benefits when an accident occurs because of your employer’s actions. Massachusetts General Laws Chapter 152, Section 28 of the Workers’ Compensation Act allows for additional compensation if the employee is injured because of the serious and willful conduct of your employer. In such circumstances, a double recovery is possible. The conduct can technically be the actions of your employer personally or another person who is working as an agent of the employer, such as a manager or supervisor. Meeting the willful and wanton standard is very difficult and only exceptional cases will qualify. As a result, it is important to talk with an experienced worker’s compensation attorney who will best know if your accident meets the standard.

A section 28 claim for double payments can also be found if the employer knowingly hires a minor in violation of other sections of the Massachusetts General Laws. Employing a minor in violation of the general laws is considered a willful and wanton act, with respect to any injuries that are suffered by the minor while on the job. The term minor as used in the statute is defined as anyone under the age of 18, as well as persons mentally disabled regardless of age.

If you believe your employer has engaged in willful misconduct which resulted in your work accident injuries, you should speak with an experienced workers’ compensation attorney. You will not be able to file a personal injury claim against your employer, but you may have a right to double the amount of workers’ compensation to which you would otherwise be entitled. Remember, few cases meet the necessary requirements, but you should speak with an attorney who can weigh the individual facts of your situation. When employers overstep bounds and exploit or fail to protect vulnerable employees, they can and should be held to account.

Contact the Jeffrey Glassman Injury Lawyers today for a free and confidential consultation.

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In the Commonwealth of Massachusetts, an employee who is injured on the job is entitled to receive workers’ compensation benefits without a requirement of showing employer was negligent in causing the injury or work-related illness. This is in one of the advantages an injured worker has under the workers’ compensation system over a traditional negligence civil lawsuit.

However, Section 28 of Chapter 152 if the Massachusetts General Laws, allows for an injured employee to recover double benefits in situations involving employer willful misconduct. Section 28 provides that if an employee is injured because of serious and willful misconduct of his or her employer or by his or her regular supervisor hired by the employer, the injured employee is entitled to double recovery.

Under the statute, if the employer is covered by workers’ compensation insurance, the employer is required to repay the insurance provider for any additional compensation paid to the injured employee.

One typical example of a workers’ compensation action involving serious willful misconduct involves cases of knowingly failing to follow machine guarding protocols. In many workplaces, employees are required to work on or around moving machinery. If there is an accident, it is often discovered the accident could have been avoided if a proper guard was in place. In some cases, an employer learns of the cost of putting in a proper machine guard, he or she decides that it is too expensive and takes a risk that another worker will not be injured in the same preventable manner. When the second injury occurs, it can be classified as being caused by serious willful misconduct on behalf of the employer.

As the experienced legal team at Jeffrey Glassman Injury Lawyers can explain, a claim must be made under this specific section in order to receive double benefits. The employer may appear at a hearing and defend against the claim, but only with respect to the willful misconduct portion.

The statute also provides that an employer who knowingly hires a worker who is known by the employer to be a minor and that minor employee is injured, the accident is deemed by law to involve serious willful misconduct on behalf of the employer.

The Massachusetts workers’ compensation law also broadly defines the term minor to include a mentally disabled worker over the age of 18 unless the employment takes place in a “sheltered workshop” that is licensed by Department of Developmental Services or other accreditation agency, and employer has a professional vocational specialist evaluate the employee on the job site who certifies that the employment arrangement is appropriate and employee has agreed to agree to a written work plan.

The Division of Administration of the Massachusetts Department of Industrial Accidents is responsible for keeping records of any accidents at sheltered workshops. If there is a pattern of on-the-job accidents at a sheltered workplace, the division can take whatever action it deems necessary.

It is important to keep in mind that double recovery for serious willful misconduct on behalf of an employer is an exception to the norm and can involve a complex process for obtaining approval. The best thing an injured employee can do maximize chances of obtaining a full and appropriate recovery is contacting a workers’ compensation attorney in Massachusetts who regularly handles these types of matters and is familiar with the complexities of the system.

Our firm has helped hundreds of satisfied clients receive a financial recovery. We investigate what happened, build your case and do not settle for less than you deserve. We also handle cases pertaining to wrongful death on the job site.